Liquidator, S Pty Ltd and Rand and Ors (No 3)

[2010] FamCA 1257

FAMILY COURT OF AUSTRALIA

LIQUIDATOR, S PTY LTD & RAND AND ORS (NO. 3) [2010] FamCA 1257

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

LIQUIDATOR: The Liquidator,
S Pty Limited

THIRD RESPONDENT: Mr G Rand

FOURTH RESPONDENT: Ms N Rand

ELEVENTH RESPONDENT: C Pty Limited

FILE NUMBER: SYF 2153 of 2001

DATE DELIVERED: 16 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 16 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tobin

SOLICITOR FOR THE APPLICANT: Brown & Partners

COUNSEL FOR THE RESPONDENT:

Mr Feller SC

with Mr Milanovic

SOLICITOR FOR THE RESPONDENT: Cadmus Lawyers

Orders

1. That the timetable for the further conduct of the actions between the Liquidator, C Pty Limited and the Rands sought by Mr Tobin as appearing below with each time limit extended to the dates appearing hereunder is:

   a)That the respondents to the application filed by S Pty Ltd (In Liquidation) on 23 April 2010 (“Guarantee Claim”) file any amended response to the Guarantee Claim on or before 25 February 2011.

   b)That the applicant in the application filed by C Pty Ltd on 21 July 2009 (“DOCA Claim”) file any amended points of claim in the DOCA Claim on or before 25 February 2011.

   c)That the respondent to the DOCA Claim file any response to the DOCA Claim on or before 11 March 2011.

   d)That the applicant in the Guarantee Claim file and serve any affidavits or other documents upon which it intends to rely on or before 8 April 2011.

   e)That the applicant in the DOCA Claim file and serve any affidavits or other documents upon which it intends to rely on or before 8 April 2011.

   f)That the respondents to the Guarantee Claim file and serve any affidavits or other documents upon which they intend to rely on or before 6 May 2011.

   g)That the respondent to the DOCA Claim file and serve any affidavits or other documents upon which he intends to rely on or before 6 May 2011.

   h)That the DOCA Claim and Guarantee Claim be listed for directions on

   
   

   13 May 2011.

   i)That the parties have liberty to apply on 2 days’ notice.

2. That costs of the proceedings involving the Liquidator, C Pty Limited and the Rands are reserved to be determined by a judge other than Justice Cohen after the Full Court has made its decision as to jurisdiction.

3. That leave is granted to C Pty Limited and/or the Rands to issue subpoenas to:

   a)        Mr WJ;

   b)        KPMG;

   c)        Mr TE;

   d)        Mr MA; and,

   e)        National Australia Bank.

4. That leave is granted to the Liquidator to issue a subpoena to the National Australia Bank.

IT IS NOTED that publication of this judgment under the pseudonym Liquidator, S Pty Ltd & Rand and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2153 of 2001

THE LIQUIDATOR, S PTY LIMITED

Applicant

And

MR G RAND

3^rd Respondent

And

MRS N RAND

4^th Respondent

And

C PTY LTD

11^th Respondent

REASONS FOR JUDGMENT

1. In this matter, finally, there have been points of claim filed by C Pty Limited, and the points of defence filed by Mr and Mrs Rand Senior.  The liquidators claim, in each case that those pleadings are defective.  Senior counsel appearing for C Pty Ltd and the Rands effectively conceded before me that the claim about the defectiveness of the pleadings which have been filed is properly based, while at the same time making it perfectly clear that he had nothing to do with them, which always gives the Court a clue as to counsel’s own opinion about the documents, if that matters.

2. However, there is a real concern here that I have already expressed – I think, at least on two previous occasions – that C Pty Ltd and the Rands are conducting themselves in a way which is designed to stall for time. From what I have heard from the bar table today from the wife, it may be that one of the reasons why that course is being taken is to allow the husband through the Rands and C Pty Ltd to fight the wife on a different ground, namely the Federal Court. I have been informed by the wife, from the bar table, that the husband or the Rands have taken bankruptcy proceedings against her.

3. When one considers that the purpose of liquidation proceedings is to allow her to obtain – so far as it is possible – what was justly held to be her right to property, one can understand why this suspicion is raised by bankruptcy proceedings against the wife in view of the way in which the liquidation and related proceedings have been conducted. 

4. The matter came before me today for the purpose of further directions.  Of course, it was listed with that in mind before the pleadings by C Pty Ltd and the Rands had been filed.  The liquidator now says that they are so defective that, in the case of the defence by the Rands there should be a summary judgment and specific orders should be made to overcome the defective points of claim filed on behalf of C Pty Ltd.  He concedes that amendment could cure the problem so he now seeks a different set of orders.  It is, in fact, a timetable which essentially would permit both C Pty Ltd and the Rands to amend their points of claim and points of defence, and allow the liquidator to file its points of defence to C Pty Ltd’s points of claim once they are amended. 

5. In addition to this the liquidator says that rather than waste further time with orders for such things as the answers to questions, particulars or interrogatories, the most appropriate step to take is to order the parties to file their evidence.

6. Mr Feller, of senior counsel argued on behalf of C Pty LTd and the Rands that to do so is very expensive, and that there is the possibility that there will be a mediation, and if that occurs it may be unnecessary to file the evidence, and that, therefore, if his clients are required to file it it will involve unnecessary expense.  He also argues that, as there are appeals against any orders, it is premature to make any further orders in the proceedings because in the event that the appeals succeed one or both matters will have to go to the Supreme Court.

7. It is my view that there has been enough delay already.  Whether or not it was intended by C Pty Ltd and/or the Rands, and there is no reason why – if I appoint a timetable for the filing of evidence – there should not be a mediation before the time for acting pursuant to the timetable arises. 

8. In the circumstances, I think it is appropriate to impose upon the parties both timetables for completing the pleadings and timetables for the filing of evidence.  Mr Tobin has placed before me a document which contains the orders he seeks.  Mr Feller, for practical reasons, has put to me that if I am inclined to make the orders that are contained in the document provided by Mr Tobin I should allow an extra two weeks.  In other words, extend the timetable by adding two weeks to each of the time limits Mr Tobin has asked me to impose.

9. Even though I regard delay as a real problem in this case, it is not my view that two weeks will make any substantial difference, and for the sake of convenience, more than anything else, and to give a better opportunity for the parties to undertake mediation if they agree upon it, I shall add two weeks to each of the times that Mr Feller asks for.

10. Mr Feller asks that I order mediation.  It is my view that mediation can’t possibly succeed if it is unwillingly entered into.  To order it is to defeat the very purpose of mediation.  The parties are free to mediate if they see fit without an order from me and free mediation has, in my view, a much better chance of success than enforced mediation. I am not prepared to make an order for mediation for that reason.  However, there is no reason, as I have said, why the parties cannot agree to mediate the matter.

ORDERS DELIVERED

1. On the issue of costs, it is my view that I should not order costs at this stage because of the appeal.  I should reserve costs.  I shall not be in a position myself to hear an application for costs if ultimately one is made, but I shall stand the costs application over to a time subsequent to the determination by the Full Court of the appeals. 

ORDERS DELIVERED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 16 December 2010.

Associate:     

Date:              23 February 2011